“PASSIVE EUTHANASIA SHOULD BE ALLOWED” : SUPREME COURT. [A short commentary on  Aruna Ramachandra Shanbaug Vs. Union of India & others, W.P (Criminal) 115 of 2009, decided in March 7, 2011, Coram: Markandey Katju and Gyan Sudha Misra, JJ.]
This Petition under Art.32 of the Constitution of India has been filed on behalf of Aruna Ramachandra Shanbaug by Pinky Virani, Mumbai, who claims to be her next friend. The facts very briefly are that when the petitioner was working as a staff nurse in King Edward Memorial Hospital Pirani, Mumbai, she was being brutally sodomized by a sweeper in the hospital. As she was strangulated by a dog chain during the incident, supply of oxygen to the brain stopped and as a result of all these she was in a coma state and bedridden for about 36 years in King Edward Memorial Hospital (respondent herein). The prayer of the petitioner was that the respondents be directed to stop feeding Aruna and let her die peacefully. The question arises in this cases are as follows:-
1. Whether in a person who is in a permanent vegetative state (for short ‘PVS’), withholding or withdrawal of life susaining therapies are permissible or ‘not lawful’?
2. Whether in a case where a patient previously expressed a wish not to have life sustaining therapies, should his/her wishes be respected when the situation arises?
3. Whether in a case where a patient has not previously expressed such a wish, if his family or next of kin makes a request to withhold or withdraw futile life sustaining therapies, should their wishes be respected?
4. As Aruna has been looked after by the respondent hospital and abandoned by her family, who should take decision on her behalf?
In order to answer these questions Supreme Court had explained the difference between “Active Euthanasia” and “Passive Euthanasia”. “Active Euthanasia” is taking specific steps to cause patient’s death, for example, injecting the patient with some lethal subject and it is a crime all over the world except where permitted by legislation. “Passive Euthanasia” is defined as withdrawing medical treatment with a deliberate intention of causing patient’s death. The Apex Court opined that there is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision in this connection. At this juncture, in order to fill the vacuum, Supreme Court had laid down the law in this connection which will continue to be the law until Parliament makes a law on the subject. It is as follows:
1. A decision has to be taken to discontinue life support either by parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
2. If a decision is taken by near relatives, doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned. This check is necessary to avoid misuse of this law by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient.
3. When such applications are filed under Art.226 of the Constitution of India, the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the third a physician. For this purpose a panel of doctors in every city may be prepared by the High Court in consultation with the State Government /Union Territory and their fees for this purpose may be fixed.
4. The committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court Bench.
5. The High Court Bench shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of doctors committee to them as soon as it is available. After hearing them the High Court Bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislations on this subject.
6. The High Court should give its decision speedily at the earliest, since the delay in the matter may result in causing great mental agony to the relatives and persons close to the patient.
7. The High Court should give its decision assigning specific reasons in accordance with principle of the ‘best interest of the patient’ laid down by the House of Lords in Airedale’s case. The views of the near relatives etc. and committee of doctors should be given due weight by the High Court before pronouncing a final verdict which shall not be summary in nature. [Note: In Airdale NHS Trust Vs. Bland (1993) All.E.R.82 the House of Lords, held that in case of incompetent patients, if the doctors act upon the basis of informed medical opinion and withdraw the artificial life support system, if it is in the ‘patient’s best interest’, the said act cannot be regarded as a crime.]
In the present case the Court considered King Edward Memorial Hospital, who has been amazingly caring her for about 36 years, as Arun’s next friend who can take a decision regarding the withdrawal of life sustaining therapies. As they have clearly expressed their wish that Aruna should be allowed to live, the petition filed by Pinky Virani praying to allow Aruna to die peacefully was accordingly dismissed

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